Unanimous Supreme Court Upholds TikTok Divestiture Law

Justices ruled the law is content neutral and pointed to national security concerns Congress raised as justifying the First Amendment impact on TikTok and its users. Justices Sonia Sotomayor and Neil Gorsuch each wrote concurring opinions that largely agree with the court opinion. “We emphasize the inherent narrowness of our holding,” the court said. “But TikTok’s scale and susceptibility to foreign adversary control, together with the vast swaths of sensitive data the platform collects, justify differential treatment to address the Government’s national security concerns.”

The law’s divestiture requirement was to take effect Sunday, but the White House issued a statement Friday that it would leave enforcement of the ban to Donald Trump, the new president. “Given the sheer fact of timing, this Administration recognizes that actions to implement the law simply must fall to the next Administration, which takes office on Monday,” said then-White House Press Secretary Karine Jean-Pierre in a release.

In a post on Truth Social Friday, Trump called the ruling “expected” and said it must be respected. “My decision on TikTok will be made in the not too distant future, but I must have time to review the situation. Stay tuned!” In an earlier post Friday, Trump said he discussed TikTok and other subjects with Chairman Xi Jinping, China’s leader. “It is my expectation that we will solve many problems together, and starting immediately,” Trump wrote.

TikTok CEO Shou Zi Chew in a statement Friday thanked Trump for his commitment to working with the company to find "a solution that keeps TikTok available in the United States.” The company will do everything in its power to ensure the platform “thrives as your online home for limitless creativity and discovery” for years, he said. “More to come.” Keeping the platform operable in the U.S. would be a “strong stand” for the First Amendment and “against arbitrary censorship,” he said. Trump “truly understands our platform.”

The provisions of the divestiture law “impose TikTok-specific prohibitions due to a foreign adversary’s control over the platform and make divestiture a prerequisite for the platform’s continued operation in the United States,” said the court. “They do not target particular speech based upon its content.”

That means the court isn’t required to apply its strict scrutiny standard to the law -- which presumes unconstitutionality -- and can instead judge it under intermediate scrutiny, which requires laws to further an important government interest by means related to that interest.

The divestiture law is “designed to prevent China -- a designated foreign adversary -- from leveraging its control over ByteDance Ltd. to capture the personal data of U.S. TikTok users,” the opinion said. “This objective qualifies as an important Government interest under intermediate scrutiny.” The justices appeared to telegraph this line of thinking at oral argument earlier in the week, when they seemed receptive to the government's national security concerns. A law “targeting any other speaker would by necessity entail a distinct inquiry and separate considerations,” the opinion said.

Hill Reaction

Sen. Ed Markey, D-Mass., said in a statement he was “deeply disappointed in the Supreme Court’s decision.” A “TikTok ban taking effect on Sunday would be profoundly harmful -- from creators losing their livelihoods, to communities losing an essential communication tool during emergencies such as the Los Angeles wildfires.” The lawmaker led a Thursday night letter to then-President Joe Biden asking him to intervene to delay the divestiture deadline. Markey and three other senators joined Rep. Ro Khanna, D-Calif., last week in introducing the Extend the TikTok Deadline Act (HR-391/S-103), a bill that would delay Sunday’s deadline by 270 days.

Khanna told us Wednesday he had urged then-President Joe Biden to exercise his authority under the new law to extend the deadline by 90 days. Khanna noted Trump will have the same discretion beyond the deadline and an extension would allow TikTok to work on other “appropriate” solutions.

Sen. John Cornyn, R-Texas, told us the deadline shouldn’t be extended. “Part of the problem is explaining to people that it’s not actually a ban,” he said, arguing in favor of immediate divestment. “It’s a prohibition against the Chinese Communist Party actually owning it and basically spying on the American people.” If TikTok closed tomorrow, the Chinese government would find other ways to “steal” information from American consumers, he said, so allowing them another 270 days to openly “spy” on TikTok users isn't the answer.

Paul told us that TikTok should have every opportunity to respond to the new law but that he doesn’t support a delay because it leaves the measure in place. Paul has characterized the divestment law as “authoritarian” censorship mirroring the Chinese government's attitude about free speech.

House Commerce Committee leaders were among those who approved of the high court leaving the divestiture deadline in place. The “decision affirms what Congress has been saying all along to ByteDance and the Chinese Communist Party: divest or face a ban,” said House Commerce Chairman Brett Guthrie, R-Ky., and Communications Subcommittee Chairman Richard Hudson, R-N.C. The panel will “continue to vigorously fight attempts by the CCP to compromise our communications networks and surveil the American people,” the lawmakers said.

House Commerce ranking member Frank Pallone, D-N.J., said TikTok “now has a decision to make: if the company wants to continue to operate in the United States it must divest from [CCP] control. I urge ByteDance to recognize that it's time to sell TikTok. Spending lavishly to celebrate” Trump’s “inauguration, and sending the CEO to sit on the dais does not change federal law or override a unanimous decision by the highest court in the land.”

House China Committee Chairman John Moolenaar, R-Mich., emphasized Congress didn't enact a total “ban on TikTok. It is a pathway to a safer, better TikTok. This is the first step -- now it is time to make the deal of the century.”

'Certainly' Burden

Thomas Berry, director of the Cato Institute’s Robert A. Levy Center for Constitutional Studies, said in a post on X that SCOTUS “accepted the government’s argument that there are speech-neutral reasons for a law to single out TikTok” but ignored evidence in the legislative record “that TikTok was targeted because of the speech on the platform,” A post from Jeffrey Westling, American Action Forum director-technology and innovation policy, said, “It seems stark that data collection was the justification of the courts but preventing bytedance/ccp from influencing speech was the more serious justification in public.”

The court said that effectively banning a social media platform with 170 million U.S. users “certainly burdens” their ability to express themselves, but the law doesn’t target the content of speech but rather “a foreign adversary’s control” over the platform. Although TikTok and others had argued that the U.S. government could impose less burdensome requirements to protect user data, the justices didn’t agree. “Petitioners’ proposed alternatives ignore the ‘latitude’ we afford the Government to design regulatory solutions to address content-neutral interests,” the opinion said.

In his concurrence, Gorsuch faulted the rushed timeline of the court’s decision and appeared to warn that government arguments concerning TikTok's “covert manipulation of content” come close to infringing free speech rights. “One man’s ‘covert content manipulation’ is another’s ‘editorial discretion,’ Gorsuch said. “Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them. Without question, the First Amendment has much to say about the right to make those choices.” Daniel Lyons, professor at Boston College Law School, posted that Gorsuch’s concurrence “is important to cabin the rougher edges of what is necessarily an imperfect per curiam written under the clock.” Sotomayor, in her concurrence, said SCOTUS precedent “leaves no doubt” that the law implicates the First Amendment.

“This decision and the issues it addressed highlight some of the weaknesses of our data privacy approach,” said Tirzah Duren, president of the American Consumer Institute. “Only through comprehensive legislation can we effectively address the risks posed by foreign adversaries while ensuring a secure and competitive digital economy,” she added. Said Evan Greer, director of Fight for the Future, “TikTok going dark serves no one’s interest but authoritarian regimes.” Greer added, “It disrupts the lives of creators, pushes users toward unsafe alternatives, and reinforces Big Tech’s monopoly by eliminating competition.”